Employers may be liable for indirect discrimination where particular treatment can be viewed as a consistent practice, even if it is applied only rarely. Further, even where the treatment would cause distress to all employees, an employee can establish the particular disadvantage required in connection with a religious belief if that employee would suffer more due to their belief.
In Pendleton v Derbyshire County Council, the employer required the claimant to choose between her job and her marriage following the conviction of her husband for downloading indecent images of children. This put her at a particular disadvantage given her Christian belief in the sanctity of marriage, meaning that she suffered more than others in a loving and committed relationship. Although the employer's action was a response to highly unusual circumstances, its own evidence was that it would respond in the same way should the circumstances arise again, and this was sufficient to amount to a "practice" for indirect discrimination purposes.
Employers should also keep an eye out for the ECJ's ruling on two cases concerning a dress code prohibition on the wearing of headscarves.
The Advocate-General in Achbita v G4S Secure Solutions has given a controversial opinion suggesting that a ban on all visible signs of religious, philosophical and political beliefs can be justified by an employer's corporate policy of neutrality. In considering whether the ban was proportionate, the Advocate-General took into account the fact that the employer applied the ban consistently prohibiting all types of visible signs (whether or not wearing them was viewed as a mandatory part of a religion), the fact that a headscarf is a large and conspicuous symbol, the nature of the employee's role and that the case here involved a receptionist having contact with a diverse range of customers, the burden on employers if required to find alternative back-room roles, and the constitutional status of secularism in France (where the employee worked). Particularly controversial is the apparent conclusion that religion is a lesser form of protected characteristic, in that it was viewed by the Advocate-General as a matter of choice rather than an immutable characteristic of an individual (such as gender or race) and therefore an individual can be expected to have to moderate their 'chosen' behaviour in the workplace. In contrast, there is considerable support in the UK for the idea that the law should require employers to make a reasonable accommodation for religious beliefs.
It is also a little surprising how much weight was apparently given to the employer's desire to adopt a policy of neutrality, when assessing the proportionality of the ban. The opinion can be contrasted with the ruling of the European Court of Human Rights in Eweida v UK. In that case BA's uniform policy imposed a prohibition on visible items of adornment. Its aim of projecting a professional corporate image and promoting recognition of brand and staff was held to be legitimate, but did not justify prohibiting the wearing of a necklace with a cross given that the cross was discrete and did not really detract from professional appearance. Further, BA permitted the wearing of "mandatory" religious items such as turbans and hijabs and there was no evidence these had a negative impact on BA's brand.
A second Advocate General's Opinion is expected on 12 July in Bougnaoui v Micropole Univers, concerning the employer reassigning an employee who wore an Islamic veil in contravention of a client’s religious neutrality principle. This is the first time that religious discrimination cases have come before the ECJ; it is not bound to follow Advocate-General opinions and its ruling is keenly awaited given the sensitivity of the issues involved.